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Those wishing to bring a derivative action against a corporation should take note of the recent decision of Melnyk v Acerus Pharmaceuticals Corporation, which provides further guidance on the test for being granted leave to bring a derivative action.

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Does the director of a corporation owe a common law duty of care to that corporation’s security holders? The prevailing view has been that directors do not owe a duty of care to a corporation’s investors. However, the Ontario Superior Court in Poole v Phillips determined that the answer to this question is not clear enough to permit summary dismissals of such negligence claims. In Poole, the Court refused the Defendants’ motion for summary judgement, holding that a negligence claim brought by investors against a corporation’s directors disclosed a genuine issue requiring trial.

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Sometimes small disputes about technical matters unearth deeper truths about how the law works. This happened in a decision released on January 27, 2017 by the Supreme Court of Canada. Sabean v Portage La Prairie Mutual Insurance Co on its face concerned a narrow issue of interpretation defining amounts payable under automobile insurance policies. In resolving this issue, the Court bumped into a much more general issue concerning whether and how jurisprudence influences the meaning of words used in private contracts.

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The hardest mistake to fix in litigation may be missing the limitation period. Almost every other mistake can be fixed, but missing that critical window for bringing a claim can be catastrophic.

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Kierkegaard famously observed that life can only be understood backwards. Many a commercial lawyer finds this easy to understand. It is a reality of modern commercial life that increasingly complex and sophisticated transactions can have implications that are not understood or anticipated when they are executed, but only become clear later, and in hindsight. This may especially be the case where complex transactions need to be executed quickly and in real time.

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All professionals deal with difficult clients from time to time.  Difficult clients are often characterized by an aversion to receiving negative opinions and a refusal to heed the counsel of the professionals they have retained. A natural temptation when dealing with such clients might be to stop giving negative opinions to them and to instead focus on simply completing the tasks which the client has instructed. However, as the recent decision in Western Troy Capital Resources Inc v Genivar Inc demonstrates, in order for professional firms to avoid potential liability, they must ensure that they state their negative opinions clearly to their clients, especially in circumstances where a professional believes that the work which they are being retained to complete is futile. 

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“Privacy is something you can sell, but you can't buy it back.”

― Bob Dylan

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Is it improper for an opinion expert to hire his or her own lawyer to help prepare an opinion? That was the issue in the recent decision of Justice Perell in Wright v. Detour Gold.  Justice Perell ruled that there was nothing improper in an expert retaining counsel to assist with the preparation of the opinion. The reasons are interesting in their conceptualization of the expert’s overriding duty to the Court, and for their interpretation of the recent Supreme Court of Canada case, White Burgess Langille Inman v. Abbott and Haliburton Co., concerning the admissibility of opinion evidence.

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Businesses need to be able to resolve disputes quickly and effectively.  For that reason, the Ontario Business Corporations Act (the “OBCA”) provides that any appeal of an order made under the OBCA lies to the Divisional Court (a special branch of the Superior Court of Justice), instead of the Court of Appeal.  In theory, appeals to the Divisional Court are resolved more quickly than appeals to the Court of Appeal. 

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Barrick Gold Corporation’s disclosure, on April 10, 2013, that a Chilean court had issued an interlocutory order suspending the construction of its Pascua-Lama mine led to a substantial drop in its share price. This was further exacerbated the following month, when Chilean environmental regulators found serious environmental violations and shut down the project. Both Rochon Genova LLP (“Rochon”) and Koskie Minsky LLP (“Koskie”) initiated class proceedings against Barrick Gold Corporation (“Barrick”) on behalf of disgruntled shareholders, with billions of dollars of damages claimed.

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Brevity is not always a virtue, especially when a trial judge’s decision leaves the palate of an appellate court dry.  The line between insufficient reasons and succinctness was explored most recently in Dovbush v. Mouzitchka.

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What happens when you take the unusual step of freezing your own assets with a Mareva injunction, but later find you need to access the funds? In Yan v. Chen, 2015 ONSC 4149, the Ontario Superior Court considered an unusual request — a motion by the plaintiffs to vary a Mareva injunction they obtained in respect of their own bank account. 

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In a recent decision, the Ontario Superior Court awarded costs on a partial indemnity scale which constituted 75% of the costs actually incurred by the successful party. The decision demonstrates the possibility of a generous costs award on a partial indemnity scale where the issues at stake are important and complex, and both written materials and oral submissions are of high calibre.

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It is league table season.  The various ratings agencies issue their lists of "best this" or "best that" in various categories, and simultaneously interview for next year's "best that" and "best this".  The patent litigation lists remain strangely impervious to gender equality.   I have been reflecting on why that should be.

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The Court of Appeal for Ontario, in Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465, recently affirmed that exceptions to the "fresh start" rule in bankruptcy must be construed narrowly and applied only in clear cases. The Court grounded its ruling in what it characterized as the "twin" goals of the Bankruptcy and Insolvency Act: (1) the equitable distribution of the bankrupt's assets among the bankrupt estate's creditors; and (2) the financial rehabilitation of insolvent individuals (para. 1).

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In PDM Entertainment Inc. v. Three Pines Creations Inc and Louise Penny, the Ontario Court of Appeal had to decide who was entitled to produce the next television adaptation of the fictional Chief Inspector Gramache.

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The Ontario Court of Appeal ruled in P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331 that section 8 of the Interest Act may apply to a promissory note even where it is not directly secured by a mortgage.

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The Quebec Court of Appeal affirmed the trial decision in Dunkin' Brands Canada Ltd v. Bertico Inc. establishing a duty on franchisor Dunkin' Brands to take reasonable steps to protect and enhance the brand in the face of competition.  The effect of the decision will have a lasting and potentially far reaching impact on the duties of parties to franchise agreements.

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Lo Faso brings up the tension between fair and just court process and ensuring that all facts are available to adjudicate a dispute.

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In Chandra v. CBC, 2015 ONSC 2980, Justice Graeme Mew rejected the CBC's argument that the jury notice should be struck because the issues and the expert evidence were too complex for the six randomly-drawn members of the public. However, the Court held that it might revisit that ruling as the trial progressed – the "wait and see" approach.

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The Liquor Control Board of Ontario has lost a protracted dispute with the Information and Privacy Commissioner ("IPC") over its right to collect the personal information of wine club members in the recent case of Liquor Control Board of Ontario v. Vin De Garde Wine Club, 2015 ONSC 2537.

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In summer 2013, Bell announced the November launch of its Relevant Ads Program (RAP).  RAP involved the use of Bell customer personal information for the purpose of delivering targeted ads to Bell customers.  Bell would charge a fee to advertisers engaged in the program.

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Whose law governs contractual disputes when the parties are in different jurisdictions and the contract itself is silent on the matter?

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It is commonly accepted that the evidence of expert witnesses must be impartial and that they owe a duty to the court to give fair, objective and non-partisan opinion evidence.

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In Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, 2015 ABCA 121, the Alberta Court of Appeal was required to rule on the meaning of a provision of an insurance policy covering all loss suffered during the construction of an office tower (the "Policy").

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A fundamental purpose of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "Act") is the financial rehabilitation of the "honest but unfortunate" debtor. One way that this purpose is achieved is through the automatic stay of proceedings granted under section 69(1)(a) of the Act.

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The recent decision of the Ontario Superior Court in Versa Fittings v. Berkley Insurance Co. (2015 ONSC 1756) reinforces that a Rule 21 motion is an expedient way to secure a ruling on whether an insurer's duty to defend has been triggered.  

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Bankruptcy provides debtors with a fresh start.  A clean slate, free from previous financial obligations. The general rule is that all previous debts are extinguished, subject to a very narrow band of exceptions, where the onus is on the creditor to establish the survival of the debt obligation post-bankruptcy.

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The political blogosphere is rude, aggressive and insulting, but the ruling in Baglow v. Smith (2015 ONSC 1175) suggests that it is nonetheless a tough forum in which to make out a case of defamation.

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The Ontario Divisional Court has recently affirmed the importance of access to justice as a factor in determining whether to certify a proposed class action.

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At trial, the Judge held that the plaintiff and the defendant real estate agents should share the 10% commission on the sale of a plaza and gas station. 

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An ongoing insolvency proceeding under the Companies' Creditors Arrangement Act can now be added to the short list of circumstances in which a court will decline to follow a forum selection clause in a commercial contract.

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In Salasel v. Cuthbertson (2015 ONCA 115), the Court of Appeal provided welcome clarification on the doctrine of absolute privilege, in a decision that revisited the case of Hassan Rasouli.

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Administrative lawyers and regulators should take note: in Swart v. College of Physicians and Surgeons of Prince Edward Island the Prince Edward Island Court of Appeal provided express guidance in the prosecution of complaints against doctors.

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In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified and reformulated the law on constructive dismissal.

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On an appeal from a Rule 21 motion, the Court of Appeal ruled that the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (PHIPA) does not create an exhaustive code precluding a civil action for intrusion upon seclusion.

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As the internet continues to develop into the primary forum for expression in our society, defamation actions increasingly involve comments made online.

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Score one for science, zero for journalistic integrity and a point for an interesting advance in the law of defamation.

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The Nova Scotia Supreme Court ruled late in January that the Nova Scotia Barristers Society ("NSBS") must accredit law degrees granted by Trinity Western University ("TWU") in Langley, British Columbia.

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The Sino-Forest class action has been certified, and leave was granted to bring a claim under the Securities Act for secondary market misrepresentations.

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The "corporate veil" is an old and well-establish concept. Corporations are separate legal entities under the law and, generally, liability will not flow through the corporation and onto the owners and directors.  This is why a corporate bankruptcy doesn't result in a flurry of debt collectors knocking on the door of every shareholder.

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The Ontario Court of Appeal recently had a chance to consider the law regarding exclusion clauses in the lease context.

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On an appeal from an arbitration under the Condominium Act, in 90 George Street Ltd. v. Ottawa Carleton Standard Condominium Corporation No. 815, 2015 ONSC 336, Justice Patrick Smith applied a correctness standard of review.

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The Court of Appeal recently released a decision that serves as a reminder to all counsel: never lose sight of who you act for.

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The Court of Appeal has affirmed the robust gatekeeping function to be exercised by trial courts in the admission of expert evidence (Meady v. Greyhound, 2015 ONCA 6).

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An Ontario decision has expanded the application of public policy to void a will, and in so doing has raised concerns of floodgates and abuse.  In Spence v. BMO Trust Company, 2015 ONSC 615, Justice Gilmore determined that the deceased, who was black, disinherited his adult daughter because she had a child with a Caucasian man – "a clearly stated racist principle".

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In what circumstances is a failure to disclose a breach of the duty of honesty?

A recent decision of the Ontario Superior Court, Lavrijsen Campgrounds Ltd. v. Reville, 2015 ONSC 103, provides an occasion to reflect on this issue, arising from the Supreme Court of Canada's ruling in Bhasin v. Hrynew, 2014 SCC 71.  In Bhasin, the Court recognized the "general organizing principle of good faith" in contract law, and held that there is:

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The Supreme Court in Tervita Corp. v. Canada (Commissioner of Competition) held that a merger between landfill operators would prevent competition but provide efficiency gains, and allowed the deal to proceed. In so doing, it has provided important guidance on three issues:

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In its recent decision in Gutowski v. Clayton, 2014 ONCA 921, the Ontario Court of Appeal provided helpful advice to two sets of professionals: municipal councillors and lawyers. First, the Court confirmed for municipal councillors that they do not enjoy absolute privilege for defamatory statements they make during municipal council meetings. Second, the Court signalled to litigators that a Rule 21 motion is not the "appropriate vehicle" through which to attempt to develop an area of law that is not fully settled.

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The Ontario Superior Court of Justice has reinforced the principle that a person's privileged communications with his or her lawyer should be strictly protected, except in narrow circumstances.

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Defendants in consumer class actions should be on notice, following two recent decisions that used consumer protection legislation as a basis to award damages.

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It's trite law that an unsuccessful litigant generally pays the successful party's costs.  But what happens when the winner hired lawyers from out-of-town who had to travel regularly for the case?  Does the losing party have to pay the travel costs incurred by the winner because they chose to hire out-of-town lawyers?  In Matheson v. CIBC Woody Gundy, the Nova Scotia Supreme Court held that the answer is yes, at least in some cases.

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The Ontario Securities Commission has vacated a 2007 settlement agreement reached between Marc McQuillen and Regulation Services (now the Investment Industry Regulation Organization of Canada ("IIROC")) [In Re McQuillen].  In February 2007, IIROC charged McQuillen and his superior at Scotia Capital, David Berry, with violations of sections 6.4 (off-market trading) and 7.7(5) (soliciting client orders of new issue shares) of the Universal Market Integrity Rules.  In February 2007, McQuillen entered into a settlement agreement with IIROC, which included a fine of $25,000.

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Canadian Courts have been faced in recent years with a number of class actions in which employees allege that their employer improperly misclassified them as ineligible for overtime pay.  The Ontario Court of Appeal's recent decision in Brown v. Canadian Imperial Bank of Commerce makes it more difficult for such claims to proceed as class actions.

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Lazy litigants beware: not only is your (in)action subject to a dismissal motion under Rule 24 of the Rules of Civil Procedure, it is also subject to the court's inherent jurisdiction.

According to the Ontario Court of Appeal in Wallace v. Crate's Marine Sales Lotd, 2014 ONCA 671, inordinate delay in pursuing an action could be construed as an abuse of process, and as undermining the administration of the civil justice system.

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At least one Superior Court judge seems to think so. In a decision on costs, Justice David Brown made the following comment regarding the claims for photocopying:

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Call it what you want: unethical tactics, improper, vexatious, or Organized Pseudolegal Commercial Arguments (OPCA) – the term coined by one Alberta judge – but actions engineered to frustrate the legal rights of governments, corporations and individuals will be rebuked for what they are: a shake down.

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The British Columbia Supreme Court's decision in Low v. Pfizer Canada Inc., 2014 BCSC 1469 could radically change the legal landscape for patent law in Canada. Patent law has thus far been entirely statutory rather than a product of the common law; courts had not recognized any common law rights or remedies in relation to patents. The decision of Justice Smith changes that, and in so doing changes the risks innovators must consider.

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The Supreme Court of Canada's decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 ("Sattva") appeared to herald a new era of deference to arbitrators: on at least ordinary questions of law, courts are now to review arbitration awards on a reasonableness standard. Saatva also confirmed that questions of contractual interpretation are usually questions of mixed law and fact. This seemingly left little scope for courts to interfere with arbitrators' interpretation of contracts.

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Relief from campaign finance rules may not be hard to come by if the wrongdoing was done in good faith. In Obina v. City of Ottawa, aspiring city councillor Lilly Obina was granted relief from penalty, despite contravening rules under the Municipal Elections Act ("MEA") regarding the filing of financial statements for her 2010 campaign.

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The tort of unlawful interference with economic relations is surprisingly slippery, especially when pleaded alongside defamation. Earlier this year, the Supreme Court of Canada in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 referred to the tort's scope as "unsettled" before departing from several recent appellate decisions on the topic. In Resolute Forest Products Inc. et al. v. 2471256 Canada Inc., 2014 ONSC 3996 the Divisional Court grappled with these developments and discussed the tort's relationship with a concurrent pleading of defamation in Ontario.

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Avoiding a written contract is no assurance that parties can maintain maximum flexibility in their dealings. In S & J Gareri Trucking v. Onyx Corporation, 2014 ONSC 476, Onyx was successful in a tender with the City of Mississauga (the "City") to provide five years of snow removal services. In so doing, Onyx indicated that it would allocate 19 trucks to providing services under the contract.